Tag: U.S. Senate Judiciary Committee

Recently concepts of natural law have re-emerged as relevant to interpretations of the U.S. Constitution. George Will, the prominent political and legal commentator, has done so in at least three Washington Post columns and in a speech at the John C. Danforth Center for Religion and Politics. This post will discuss his views on this subject. A subsequent post will explore those of Judge Neil Gorsuch, the current nominee for Associate Justice of the U.S. Supreme Court, whose confirmation hearing starts tomorrow.

Background

Two important instruments of U.S. history are the U.S. Declaration of Independence and the Ninth Amendment to the Constitution. The Declaration states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights; that among these, are life, liberty, and the pursuit of happiness.” The Ninth Amendment, which is part of our Bill of Rights, states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[1]

Although I am a retired attorney, I have not attempted to make my own analysis of how the U.S. Supreme Court has interpreted the Ninth Amendment. Instead I rely on my recollection that the Declaration and this Amendment have not been major authorities in the U.S. Supreme Court’s decisions and Wikipedia’s conclusion that the Court has not used them to further limit government power.

Wikipedia also cites this statement by Justice Scalia in Troxel v. Granville, 530 U.S. 57 (2000): “The Declaration of Independence is not a legal prescription conferring powers upon the courts, and [the Ninth Amendment’s] . . . refusal to ‘deny or disparage’ other rights is far removed from affirming any of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”

George Will’s Discussion of Natural Law

In a Washington Post column{2} Will argued that the Ninth Amendment’s protection of other rights “retained by the people” encompasses “natural law” rights, which are affirmed by these words of the Declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness—that to secure these rights, Governments are instituted among Men, deriving their just powered front he consent of the governed.”

Therefore, Will argues, “the Founders’ philosophy is infused into . . . [the Constitution] by construing . . . [the Constitution] as a charter of government that is, in Lincoln’s formulation, dedicated to [the above proposition in that Declaration].” As a result, says Will, “The drama of American democracy derives from the tension between the natural rights of the individual and the constructed right of the majority to make such laws as the majority desires. Natural rights are affirmed by the Declaration and a properly engaged judiciary is duty-bound to declare majority acts invalid when they abridge natural rights.”

“With the Declaration, Americans . . . began asserting rights that are universal because they are natural, meaning necessary for the flourishing of human nature.”

Will in this article does not go on to identify specific natural rights that are so encompassed by the Declaration. Presumably Will would not limit the protections of these words of the Declaration to those who were covered at the time of its proclamation in 1766: white men of property. In any event, his suggestion provides another “originalist” approach to interpreting the Constitution, an approach that is more open-ended than that promulgated by Justice Scalia.

George Will’s Speech at John C. Danforth Center for Religion and Politics

Additional light on George Will’s thoughts about natural law is shed by an adaption of his December 2012 speech at the John C. Danforth Center on Religion and Politics, University of Washington at St. Louis.[3]

He asserts that although he himself is non-religious, he believes that “religion has been, and can still be, supremely important and helpful to the flourishing of our democracy” and that “the idea of natural rights [does not] require a religious foundation, or even that the founders uniformly thought it did. It is, however, indubitably the case that natural rights are especially firmly grounded when they are grounded in religious doctrine.” Moreover, Will believes that the founders, who were not particularly religious themselves, “understood that Christianity, particularly in its post-Reformation ferments, fostered attitudes and aptitudes associated with, and useful to, popular government. Protestantism’s emphasis on the individual’s direct, unmediated relationship with God and the primacy of individual conscience and choice subverted conventions of hierarchical societies in which deference was expected from the many toward the few.”

According to Will, the founders “understood that natural rights could not be asserted, celebrated, and defended unless nature, including human nature, was regarded as a normative rather than a merely contingent fact. This was a view buttressed by the teaching of Biblical religion that nature is not chaos but rather is the replacement of chaos by an order reflecting the mind and will of the Creator. This is the Creator who endows us with natural rights that are inevitable, inalienable, and universal — and hence the foundation of democratic equality. And these rights are the foundation of limited government — government defined by the limited goal of securing those rights so that individuals may flourish in their free and responsible exercise of those rights.”

The U.S. Declaration of Independence asserts that “important political truths are not merely knowable, they are self-evident, meaning they can be known by any mind not clouded by ignorance or superstition. [As it states, “it is self-evidently true that ‘all men are created equal.’ Equal not only in their access to the important political truths, but also in being endowed by their Creator with certain unalienable rights, including life, liberty, and the pursuit of happiness.” [The Declaration goes on to state], ‘[T]o secure these rights, governments are instituted among men.’ Government’s primary purpose is to secure pre-existing rights. Government does not create rights; it does not dispense them.”

“Biblical religion is concerned with asserting and defending the dignity of the individual. Biblical religion teaches that individual dignity is linked to individual responsibility and moral agency. Therefore, Biblical religion should be wary of the consequences of government untethered from the limited (and limiting) purpose of securing natural rights.”

Will’s Obituary for Antonin Scalia

In the obituary Will praised the late Associate Justice Antonin Scalia for his championing the principles of judicial modesty: “textualism and originalism: A justice’s job is to construe the text of the Constitution or of statutes by discerning and accepting the original meaning the words had to those who ratified or wrote them.” Moreover, said Will, Scalia “was a Roman candle of sparkling jurisprudential theories leavened by acerbic witticisms.”[4]

In Will’s opinion, “Democracy’s drama derives from the tension between the natural rights of individuals and the constructed right of the majority to have its way. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution.” Moreover, “as the Goldwater Institute’s Timothy Sandefur argues, the Declaration is logically as well as chronologically prior to the Constitution. The latter enables majority rule. It is, however, the judiciary’s duty to prevent majorities from abridging natural rights. After all, it is for the securing of such rights, the Declaration declares, that ‘governments are instituted among men.’”[5]

Will, however, does not attempt to reconcile his praise for Scalia with the Justice’s rejection of the Declaration as important for constitutional analysis.

Will’s Questions for Judge Gorsuch

In another Washington Post column, Will suggested questions to be asked Judge Gorsuch at his confirmation hearings.[6] Here are some of those questions:

Is popular sovereignty (majorities rights) or liberty the essence of the American project?

Was the purpose of the 14th Amendment’s “privilege and immunities” clause to place certain subjects beyond the reach of majorities?

Was the 14th Amendment’s “privilege and immunities” clause’s purpose to ensure that the natural rights of all citizens would be protected from abridgment by their states?

Was the Supreme Court wrong in the 1873 Slaughter-House Cases that essentially erased the privileges and immunities clause, holding that it did not secure natural rights (e.g., the right to enter contracts and earn a living)? If so, should it be overruled?

Do you agree with Chief Justice John G. Roberts Jr. who has said the doctrine ofstare decisis — previous court decisions are owed respect — is not an “inexorable command”?

Do you agree with the Supreme Court’s division of liberties between those deemed to be fundamental and thus subjecting any restrictions on them to strict scrutiny and all others whose restrictions are subjected only to “rational basis” scrutiny?

What, in your opinion, is the role of the Ninth Amendment in constitutional law?

Are there limits to Congress’ power over interstate commerce other than those enumerated in the Bill of Rights (the first 10 amendments to the Constitution)?

Was the Supreme Court correct in the 2005 Kelo v. City of New London case upholding a city’s seizure of private property not to facilitate construction of a public structure or to cure blight, but for the “public use” of transferring it to a wealthier private interest that would pay more taxes?

What limits, if any, are imposed upon Congress’ delegation of powers to administrative agencies by Article I of the Constitution’s provision: “All legislative powers herein granted shall be vested in a Congress”?

Was the Supreme Court correct in Citizens United that Americans do not forfeit their First Amendment rights when they come together in incorporated entities to speak collectively?

Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?

Would you feel bound to follow a previous Supreme Court decision that did not evaluate evidence of the original meaning of the Constitution and was, in your view, in conflict with it?

Conclusion

Although I do not generally agree with many of George Will’s political opinions, I think that the linkage of the Ninth Amendment and the Declaration of Independence makes sense and should be explored more fully in future constitutional litigation. However, it is not so easy to make the next step of identifying additional principles of natural law that could impose limits on the federal and state governments.

The Declaration’s statement that human beings are endowed by their Creator with certain inalienable rights is part of that difficulty. First the First Amendment to the Constitution bans the federal government’s establishment of a religion. Second, there are now so many different religions in the world and in the U.S. Although as a Christian I believe that at least all of the major world religions honor peace and hospitality and that they all agree on the Golden Rule: do unto others as you would have them do unto you, I find it difficult see how that leads to principles of natural law that are useful. For example, I find it difficult to see how this linkage leads to the conclusion that the Citizens United case was correctly decided, as Will suggests.

In addition, although I have not studied the underlying sources, I am intrigued by the notion that the privileges and immunities clause of the Fourteenth Amendment was intended to encompass all natural law rights of U.S. citizens and that the Slaughter-House Cases were wrongly decided.

In any event, we all should thank George Will for proposing interesting questions for Judge Gorsuch in his confirmation hearing. I am reasonably confident that most, if not all, of them will be asked and answered.

[5]Timothy Sandefur is Vice President for Litigation at the Goldwater Institute and Adjunct Scholar with the Cato Institute. He also is the author of The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty (2013), which is a more extensive exposition of Will’s argument that the Declaration and the Ninth Amendment need to be important markers in constitutional analysis and litigation. Moreover, Sandefur argues that the privileges and immunities clause of the Fourteenth Amendment of 1868 recommitted the U.S. to the primacy of liberty and defined the terms of U.S. citizenship that unfortunately was demolished by the U.S. Supreme Court’s 1873 decision in the Slaughter-House Cases, 83 U.S. 36 (1873).

The recent squabble over new U.S. Attorney General Jeff Sessions’ testimony at his confirmation hearing before the U.S. Senate Judiciary Committee highlights the dysfunctionality of that process. After examining the current process as used for Sessions, suggestions will be made for an improved process.

The Current Process

Every member of the committee is allotted a set number of minutes to make statements and ask questions. The committee chair (now a Republican) opens followed by the ranking member of the other political party (now a Democrat). Then a member of the majority party (Republican) is granted the same privilege before returning to someone from the minority party (Democrat). The committee members also are permitted to submit written questions to the nominee after the hearing.

As a result, the time and ability to ask follow-up questions is severely limited and indeed is sidelined by the structure of the hearing.

In addition, the senators are used to making political speeches and hogging the limelight. Some are not lawyers by training or have forgotten how to ask questions designed to elicit useful information. These facts also adversely affect the ability of a hearing to obtain pertinent information from the nominee.

Committee’s Confirmation Hearing for Sessions

The above problems were exemplified at Mr. Sessions January 10 confirmation hearing by his responses to questions from Minnesota’s Senator Al Franken and New Hampshire’s Senator Patrick Leahy:[1] Here are those exchanges:

Franken:“CNN just published a story alleging that the intelligence community provided documents to the president-elect last week that included information that quote, ‘Russian operatives claimed to have compromising personal and financial information about Mr. Trump.’ These documents also allegedly say quote, ‘There was a continuing exchange of information during the campaign between Trump’s surrogates and intermediaries for the Russian government.’

“Now, again, I’m telling you this as it’s coming out, so you know. But if it’s true, it’s obviously extremely serious and if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?”

Sessions:“Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I didn’t have — did not have communications with the Russians, and I’m unable to comment on it.”

Leahy: “Several of the President-elect’s nominees or senior advisers have Russian ties. Have you been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day?”

Sessions: “No.”

Franken’s question was clearly too verbose and difficult to understand and was focused on what Sessions would do in the future as Attorney General if there were evidence that the Trump campaign communicated with the Russian government during the campaign. Sessions’ volunteering that he did not have communications with the Russians during the campaign is now shown to be incorrect, but it was not responsive to the question.

Leahy’s question is better, but is still limited to contacts with Russian government officials “about the 2016 election.” Thus, Sessions’ flat “No” may or may not be truthful in light of subsequent disclosures that he had at least two meetings with the Russian Ambassador to the U.S.

Committee’s Post-Hearing Proceedings for Sessions

After the hearing, Senator Franken submitted 20 such questions with many subparts, but none concerned Russia. Senator Leahy also submitted 37 such questions, again with many subparts. Other written questions came from four of the 11 Republican committee members and from all of the other seven Democratic members.[2]

One of Leahy’s question (No. 22) concerned Russia with subparts about the U.S. intelligence community’s report about Russian interference in the U.S. election of 2016, and Sessions said he had not reviewed the report, “but have no reason not to accept the [report’s] conclusions.”

Another subpart (e) of that Leahy question stated: “Several of the President-Elect’s nominees or senior advisers have Russian ties. Have you been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day?” Sessions response: “No.” (Emphases added.)

This written question from Leahy comes closer to asking the appropriate foundation question, but it was still limited to contacts “about the 2016 election,” which provided Sessions with a basis to interpret that limitation and to say “no” if any such contacts were not about the election as so interpreted.

Supplemental Committee Proceedings for Sessions

The truthfulness of Sessions’ responses to these questions was called into question by a March 1 Washington Post report that he had had at least two meetings with the Russian Ambassador to the U.S. in this time period. Indeed, this report prompted Senator Franken to state that Sessions had misled the American public about his contacts with Russian officials and that he should reappear before the committee to answer “tough questions” on this subject.[3]

The Attorney General, however, immediately responded to these concerns. On March 1 his spokesperson said that he did have the two meetings with the Ambassador that were referenced in the Washington Post article, but that they were in his capacity as a member of the Armed Services Committee, not as a Trump supporter, and that there was no discussion about issues regarding the presidential campaign. The next day Sessions said his hearing testimony was “honest and correct as I understood it at the time” although he was “taken aback” by Franken’s question and was focused on its reference to possible contacts between Trump campaign surrogates and Russian officials. “In retrospect,” he said, “I should have slowed down and said I did meet one Russian official a couple times, and that would be the ambassador.” Sessions also said that the September meeting at his office with the Ambassador included two of the Senator’s senior staffers, that the two principals talked about a trip the Senator made to Russia in 1991, terrorism and Ukraine, that the conversation became “a little bit . . . testy” and that the Senator declined the Ambassador’s invitation to lunch. In addition, on March 2 Sessions recused himself from “any existing or future investigations of any matters related in any way to the campaigns for President of the United States.”[4]

The Judiciary Committee Chair, Senator Chuck Grassley (Rep., IA), resolved this controversy by rejecting the request by the Democratic committee members for another public hearing and by offering Sessions an opportunity to supplement his testimony in writing.

Sessions did so on March 6 with the following statement after repeating the previously quoted Franken question and Sessions’ answer:[5]

“My answer was correct. As I noted in my public statement on March 2, 2017, I was surprised by the allegations in the question, which I had not heard before. I answered the question, which asked about a “continuing exchange of information during the campaign between Trump’s surrogates and intermediaries for the Russian government,” honestly. I did not mention communications I had had with the Russian Ambassador over the years because the question did not ask about them.”

“As I discussed publicly on March 2, 2017, I spoke briefly to the Russian Ambassador at the Republican National Convention in Cleveland, Ohio, in July 2016. This was at the conclusion of a speech I had made, when I also met and spoke with other ambassadors. In September 2016, I met with the Russian Ambassador at my Senate office in the presence of members of my professional Senate staff. I do not recall any discussions with the Russian Ambassador, or any other representative of the Russian government, regarding the political campaign on these occasions or any other occasion.”

Sessions then responded to two questions posed in a March 3 letter by the Democratic members of the committee. The first asked why he had not supplemented the record to note any contact with the Russian Ambassador before its public disclosure. Sessions said, “Having considered my answer responsive, and no one having suggested otherwise, there was no need for a supplemented answer.” The second question asked why he had not recused himself from “Russian contacts with the Trump transition team and administration.” Sessions said the scope of [his] recusal as described in the Department’s [March 2] press release would include any such matters. This should not be taken as any evidence of the existence of any such investigation or its scope. Suffice it to say that the scope of my recusal is consistent with the applicable regulations, which I have considered and to which I have adhered.”

After the submission of this Sessions’ letter, Committee Chair Grassley released the letter as an attachment to a press release announcing that there “are no plans to ask Sessions to come before the committee before an annual oversight hearing, as is customary.” Grassley also stated, ““I appreciate Attorney General Sessions’ quick action to clear up confusion about his statement and I look forward to confirming the team who can help him carry out the functions of the department, like going after sex offenders, protecting Americans against terrorists and criminal activity, and stopping drug traffickers.” Grassley added that Sessions had recused himself as he said he would in his hearing testimony in sharp contrast to the failure of former Attorney General Loretta Lynch to do so with respect to investigation of Hillary Clinton’s personal email server and classified information found on it.[6]

A Suggested Different Procedure

The squabble over Sessions’ testimony regarding contacts with Russians could have been eliminated by a procedure whereby an attorney on the committee staff with experience of interrogating witnesses would do the questioning on selected topics, rather than having only the senators on the committee do so. The following is a better way of asking Sessions about whether he had any contact with Russian officials:

On February 28, 2016, you endorsed Donald Trump for the Republican presidential nomination.[7] Correct? (Sessions: Yes.)

On and after February 28, 2016, to the present, have you had any communications, oral or written, with any Russians? (Sessions: Yes.)

Identify all such communications by their date, location and the names of the Russians.

For all such communications, identify any other persons present, the length of the communications or meetings, state the substance of the communications and identify all documents (including, but not limited to, letters, memoranda, agendas, notes, audio and/or video recordings) regarding or reflecting the communications.

Conclusion

Although this Senate procedure is flawed and should be changed, a prominent New York Times’ columnist, Nick Kristof, asserts, “there has been too much focus on Attorney General Jeff Sessions, not enough on Paul Manafort, the former Trump campaign manager” with respect to connections between the Trump presidential campaign and Russia. Instead Kristof identifies specific facts or “dots” to support his suspicion “that Trump’s team colluded in some way with Russia to interfere with the U.S. election” and supports a full and fair investigation to determine whether that suspicion is validated.[8]

The U.S. Court of Appeals for the District of Columbia Circuit, the second most important court in the U.S., is once again back in the news.

“Sri” Srinivasan

The immediate issue is the need for the U.S. Senate to confirm President Obama’s appointment of Srikanth “Sri” Srinivasan to one of the four vacancies on this Court.[1]

Srinivasan has a blue-chip resume. Currently he is the Principal Deputy Solicitor General of the U.S. and has argued 20 cases before the U.S. Supreme Court. He previously clerked for the Reagan-appointed Supreme Court Justice Sandra Day O’Connor. He also served with distinction in the Justice Department for both Presidents George W. Bush and Barack Obama and with the Washington, D.C. office of the eminent law firm of O’Melveny & Myers. A native of India, Srinivasan grew up in Kansas and earned a bachelor’s degree in 1989 from Stanford University and a J.D./M.B.A. degree in 1995 from its Law School and Graduate School of Business.

On April 10th Srinivasan had an uneventful 90-minute hearing before the Senate Judiciary Committee. His nomination is strongly supported by the Obama Administration and by noted conservative and liberal lawyers and academics.

The next step is for the Committee to vote on whether to send this nomination to the Senate floor for a vote. At least one of the eight Republican members of the Committee, Orrin Hatch, said he was impressed and would support such a motion. Assuming all 10 Democratic Committee members support such a motion, then it should be approved by a vote of at least 11 to 7. Then the whole Senate would vote on the nomination unless there was a filibuster of same.[2]

Perhaps the partisan wrangling over appointments to this Court is overwrought.

Senior Judge David B. Sentelle

Evidence for a less partisan view of this Court is found in its April 5th Presentation Ceremony of the Portrait of D.C. Circuit Senior Judge David B. Sentelle, who was appointed to the Court in 1987 by Republican President Ronald Reagan. For remarks of appreciation from his own Court, Judge Sentelle chose Circuit Judge David S. Tatel, who was appointed by Democratic President Bill Clinton in 1994.[3]

Judge David S. Tatel

Judge Tatel commented on the apparent oddity of his speaking for Judge Sentelle. Tatel said, “those who believe that judges’ decisions are driven by ideology may wonder why Dave [Sentelle] asked me to speak. After all, you would be hard pressed to find two judges with more different backgrounds, different worldviews, different beliefs, and, indeed, different shoes than we two Davids. But those who focus on these differences do not understand what it means to be a federal judge, do not understand this Court’s long tradition of collegiality, and surely do not understand Dave Sentelle.” Tatel continued, “when Judge Sentelle and I sit together, we very rarely disagree.” In “the nineteen years we’ve served together, we have disagreed less than 3% of the time.”

The answer to why there had been so little disagreement, according to Judge Tatel, was “Judge Sentelle’s decisions are driven not by personal preferences, but by a conscientious application of the principles and texts that bind us. Uncommonly peppered with the hallmarks of restrained decision-making, his opinions are full of phrases like, ‘If the intent of Congress is clear, that is the end of the matter’; ‘Courts must accord substantial deference to Congress’s findings’; ‘We are bound by the decisions of the Supreme Court’; ‘One three judge panel has no authority to overrule another’; ‘We owe agency fact-finding great deference’; ‘Issues not raised on appeal are deemed waived’; and ‘Absent jurisdiction we are powerless to act.’ For Judge Sentelle, “the tenets of judicial restraint are not mere slogans to be invoked when convenient; they are the building blocks of all that we do here.”

Judge Tatel also complimented Judge Sentelle’s judicial opinions. According to Tatel, Judge Sentelle “crafts opinions that treat every one of his colleagues, as well as every citizen who appears before us, with respect and a true generosity of spirit. Flipping through his opinions, including his dissents, you’ll find no sarcasm, no belittling remarks, no callous dismissals. This is, after all, a United States Court, and Judge Sentelle’s opinions are a credit to the dignity of this institution. In his five years as our Chief Judge, Dave has protected our proudly nurtured tradition of collegiality.”

In conclusion, Judge Tatel said, Judge Sentelle is “a man who has the greatest respect for the office he holds and an abiding dedication to a life of service and the rule of law.”

[1] President Obama’s only other eminently qualified nominee to the court, Caitlin J. Halligan, was named in 2010 to fill the vacancy created by the elevation of John G. Roberts Jr. to the Supreme Court. In March of this year Republicans for a second time mounted a filibuster that prevented the Senate from voting on Ms. Halligan, and President Obama granted her request to withdraw her nomination saying, “This unjustified filibuster obstructed the majority of Senators from expressing their support. I am confident that with Caitlin’s impressive qualifications and reputation, she would have served with distinction.” Her nomination was supported by the New York Times and Washington Post.

[2] If the Srinivasan nomination is filibustered , then Senate Majority Leader Harry Reid has threatened to modify the Senate Rules to bar such filibusters on at least judicial nominees. I frequently have voiced my strong disapproval of the filibuster rule and practice.

[3] Judge Tatel is a University of Chicago Law School classmate and friend of mine, and I have written a post about his opinion for the D.C. Circuit in the Voting Rights Act case now pending in the U.S. Supreme Court.